Colonialism and EU Law

In 1957, when the Treaty of Rome was signed and founded what later became the European Union (EU), four out of six of the original Member States were colonial powers. An important methodological question for EU law research is how this historical fact has affected the development of EU law.

I argue that answering the question of how Europe’s centuries long history of colonialism has shaped EU law is not just a historical exercise but also a starting point for an examination of EU law of today. Examining the ways in which colonialism determined the drafting of early EU primary law, the implementation of secondary legislation, or how EU law never managed to eradicate colonial era legal practices on the national level is not merely a way of judging the past but could be, as has been the case in international law, a way of critiquing continuities between then and now.

The increasing number of researchers who today scrutinize the relationship between EU law and colonialism stand on at least a decade of research from multiple fields. Historians and theorists of European integration such as Giuliano Garavini, Peo Hansen and Stefan Jonsson and Kiran Klaus Patel have noted how colonialism determined political bargaining in the Treaty of Rome negotiations. These questions have been examined by North-American based French historians like Megan Brown, who has written a history of Algeria as the 7th member state of the EEC, as well as Frederick Cooper, Emmanuelle Saada and Emily Marker, who have written about discriminatory citizenship laws and racism in French colonial administration in the period of early European integration. The political scientist Véronique Dimier has unveiled how actors who once populated the administration of European colonialism shaped procedures of what are today European Union institutions. The political scientist Kalypso Nicolaïdis has described the European Union’s institutional amnesia concerning its colonial past.

This growing multi-disciplinary field has produced an immanent critique of the founding narrative of the EU. This research collectively shows that the origin of the EU was not just characterized by peace in Europe after the Second World War. It was also deeply affected by processes of decolonization, as well as by efforts to keep colonial powers intact, which were unfolding in multiple places as the first steps of European integration materialized. This group of scholars have redefined how the origins of the EU should be taught to students of European integration.

Foundational EU law was in no way insulated (read Daniela Caruso and Joanna Geneve,  Janine Silga, Nadine El-Enany and Signe Larsen). In my own research I have situated the European Union as an example of a post-World War II international organization with founding legal texts shaped by colonialism. This research shows how the archival material from the Treaty of Rome negotiations contains a story of the ways in which the colonial politics of the time shaped the drafting of legal categories describing individuals: those of peoples; inhabitants; and workers. As the Treaty of Rome ‘associated’ colonized territories to what was then the European Economic Community, this archival material shows how the Treaty simultaneously arranged its legal categories to exclude individuals who lived in colonized territories from legal benefits and representation. These core legal categories of the Treaty of Rome legally separated people who were considered ethnically and racially European citizens from people who were not so considered, but who were subjected to, or citizens of, a Member State. Foundational EU law replicated parts of the ways in which the colonial era citizenship laws of France, Belgium, the Netherlands and Italy were designed to accept distinctions based on ethnicity and race between individuals subjected to the same state.

With this background, and with more research to come (see for instance the contributions from different disciplines in H. Eklund (ed.), Colonialism and the EU Legal Order, forthcoming with CUP), it is clear that the connection between colonial history and the laws of today is in search of a granular theory. A theory of how colonialism shaped not just the law in territories that were colonized, but the laws of Europe too. A critical examination of what colonialism did to EU law. Therefore, the next task of EU legal studies is to register and theorize repetitions of, for instance, the ways in which EU law accepts distinctions based on ethnicity and race between individuals subjected to the same state. Let us take an example.

Sixty years after the Treaty of Rome was signed, in 2017, the Court of Justice of the European Union (CJEU) ruled that two Danish, and therefore two EU, citizens who were married and wanted a car loan could be asked to provide different forms of proof of identity depending on where they were born. For the wife, who was born in Denmark, an ID-card was enough, but for the husband, born outside of the EU, the lender required additional documentation. The CJEU did not consider the lender’s requirement discriminatory. The case, Jyske Finans, has been criticized for its poor legal reasoning, because the CJEU accepts difference in treatment between EU citizens based on their ethnicity. This case law develops as the group of people who are EU citizens but born outside of Europe has been growing at the same rate for over a decade, and as nationalist and xenophobic political parties form majorities in European national parliaments and governments.

Acknowledging that colonial legal politics shaped the early days of European integration and the formation of EU law is not a way of claiming causality between then and what happens today in contemporary EU law in the context of current legal politics. Rather, and importantly, acknowledging the foundational presence of colonial legal politics is a forceful way of questioning continuities between then and now.

When analysing legal and political developments within the EU today, which accepts difference in treatment based on ethnicity, such as Jyske Finans, one can understand these as repetitions of a legal construction already present in the Treaty of Rome. These repetitions, when read together rather than separately, represent a sedimented practice of denying equal treatment within EU law.

The fact that colonial legal politics shaped early EU law to embed colonial practises that denied equal protection does not cause a Danish bank to discriminate against a borrower nearly sixty years later. But when analysing the fact that EU law as interpreted by the Court of Justice of the EU accepts differentiated treatment based on ethnicity in 2017, the critical power of that analysis is reinforced if it takes into account that denial of equal treatment was present in early EU law. While colonialism in the form it took in 1957 is of the past, repetitions of the rationales underpinning colonial legal politics should be registered as such and used to inform debates about weaknesses in current application of EU law.

In essence, knowledge about the link between colonialism and the development of EU law yields greater urgency to reforming the current practise of EU law. Properly acknowledging, in the study and teaching of EU law, the injustice of ways of reasoning that were present in colonial era EU law making impedes similarly structured injustices from being repeated. The growing body of research into the ways in which the development of EU law was shaped at the outset by colonial legal politics is a way of evaluating both the past and present practise of EU law. Showing how certain ways of using law characteristic of the colonial era reappear today in a different historical context can connect a critique of the past and present of EU law with a clearer vision of a different future.